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Assault

The Charge

Under s. 265 of the Criminal Code a person commits assault when they apply force directly or indirectly to another person without their consent. This includes threatening, by act or gesture, to apply such force to another person. Assault, therefore, covers all acts where force is actually applied (such as a slap, punch or kick) to situations where force is threatened (such as raising a fist). Assault is a hybrid offence, meaning Crown counsel has the option of proceeding by indictment, where the maximum penalty is 5 years imprisonment or, Crown may proceed summarily, where the maximum penalty is two years jail, less a day. There are no mandatory minimum penalties for Assault. We’ve been defending assault charges for more than 25 years. We understand that the majority of people charged with assault had no plan to commit an offence. Rather, people charged with assault usually find themselves in situations that rapidly escalate into a physical altercation. Often, alcohol or other intoxicants are involved. Sometimes serious injury occurs, leading to charges of assault causing bodily harm or aggravated assault. If a weapon, or an object as a weapon, is involved, people can be charged with assault with a weapon.

The Investigation

The nature of when and how a complaint is made to police will determine how the investigation unfolds. In some cases, for example when concerned patrons in a nightclub or pub see a fight break out, police are called and will attend quickly and make an arrest. In other cases, police may not receive a complaint for several days or longer. When this happens, police will contact the suspect by telephone or by attending at their home or workplace. No matter when police deal with the suspect, they will want to hear the suspect’s side of the story. As experienced criminal defence lawyers, this is where we can help clients understand that the Charter of Rights and Freedoms guarantees that people under police investigation have the right to remain silent.

In situations where clients contact us after the alleged assault incident, but before they are arrested, we can be of significant assistance. We will make enquiries to determine who the lead investigator is; we will then contact this officer and discuss the investigation on our client’s behalf. Because of the laws concerning solicitor/client privilege, we can act as a “buffer” between police and our client. We will strive to persuade police to not recommend any charges or, where police do want to pursue charges, we will strive to get police to agree to not arrest our client. Rather, we will endeavor to arrange that our client can appear in court to have the arrest warrant “deemed executed,” without the need for our client to be taken into custody.

Recent Successes

R. v. M.G. – Nanaimo Supreme Court

Charges: Break and Enter; Sexual Assault.
Issue: Whether there was a substantial likelihood of a conviction.
Result: Mr. Gauthier was able to persuade Crown counsel that the Crown lacked the necessary evidence to gain a conviction. On the eve of the trial, Crown entered a stay of proceedings, bringing the matter to an end. No criminal record.

R. v. H.A.S. – Vancouver Provincial Court

Charges: Sexual Assault (x4).
Issue: Given our client's extensive progress with rehabilitation and the collateral consequences of a conviction, whether it was appropriate for our client to be granted a conditional discharge.
Result: After hearing Mr. Mines' extensive submissions on our client's behalf, the trial judge granted our client a conditional discharge rather than imposing a conviction which would have resulted in a deportation order.

R. vs. D.A. – Kelowna Provincial Court

Charges: Assault with a Weapon; Obstruct Police Officer.
Issue: Despite the very serious nature of the offence (threatening to cause serious harm at knifepoint) whether a jail sentence was the appropriate sentence.
Result: Mr. Gauthier was able to direct our client through an intensive course of rehabilitation, and was ultimately able to persuade Crown counsel and the Court to grant our client a conditional sentece to be served in the community in a residential tratment facility. No jail.

R. vs. R.P. – Vancouver Provincial Court

Charge: Assault.
Issue: Given the extensive rehabilitation effort of our client, whether it was appropriate for the court to grant our client a conditional discharge.
Result: Mr. Mines was able to persuade the Court that provocation was a significant factor and that, despite kicking the complainant, the appropriate sentence was a discharge on condition of "no contact" for 12 months. No criminal conviction.

R. v. K.P. – Vancouver Provincial Court

Charge: Uttering Threats (reduced to Peace Bond).
Issue: Given the Charter issues that arose during our client's arrest, whether it was appropriate to continue with the criminal prosecution.
Result: Mr. Gauthier was able to persuade Crown counsel that police had likely violated our client's rights during his arrest and to proceed with a Peace Bond rather than the criminal charge. No criminal record.

R. vs. O.A. – Vancouver Provincial Court

Charges: Criminal Harassment (reduced to Peace Bond).
Issue: Given our client's significant self-rehabilitation, whether it was in the public interest to proceed with the criminal prosecution.
Result: Mr. Gauthier was able to persuade Crown counsel to end the criminal prosecution and to resolve the matter with a s. 810 Recognizance ("Peace Bond"). No criminal record.

R. vs. P.A.N. – West Vancouver Police Investigation

Charge: Fraud (from employer).
Issue: Given our client's cooperation with authorities and willingness to repay the alleged misappropriated funds, whether it was in the public interest to proceed with criminal charges.
Result: Mr. Gauthier was able to persuade the police investigator to refer the file to Restorative Justice rather than arresting our client and recommending a criminal prosecution. No charge was approved. No criminal record.

R. vs. M.P. – Vancouver Provincial Court

Charges: Assault (reduced to Peace Bond).
Issue: Given the rehabilitative steps we were able to guide our client through, whether it was in  the public interest continue with a criminal prosecution.
Result: Mr. Mines was able to persuade Crown counsel to proceed with a Peace Bond rather than the criminal assault charge. No criminal record.

R. vs. K.Q. – Richmond Provincial Court

Charge: Mischief to Property.
Issue: After Mr. Gauthier was able to facilitate making restitution on our client's belf, whether it was in the public interest top proceed with the criminal prosecution.
Results: Crown counsel accepted Mr. Gauthier's representations and concluded the matter by entering a stay of proceedings. no criminal record.

R. vs. A.V. – Duncan Provincial Court

Charge: Assault.
Issue: Given the information Mr. Johnston was able to provide to Crown counsel about our client's circumstances and the significant rehabilitation steps we were able to guide him through, whether it remained in the public interest to continue with the prosecution.
Result: Crown counsel accepted Mr. Johnston's representations and concluded the matter by entering a stay of proceedings. No criminal record.

R. vs. D.J. – Chilliwack Provincial Court

Charge: Assault (reduced to Peace Bond).
Issue: Given the rehabilitative steps we were able to guide our client through, whether a criminal prosecution was appropriate.
Result: Mr. Mines was able to persuade Crown counsel to proceed pursuant to a s. 810 Peace Bond, and to enter a stay of proceedings on the criminal charge. After hearing Mr. Mines' submissions, the Court placed our client on the Peace Bond. No criminal record.

R. v. Q.C. – Insurance Fraud Investigation

Charge: Insurance fraud over $5000 investigation.
Issue: Given our client's rehabilitation and repayment of disputed funds, whether it was in the public interest to proceed with a criminal prosecution.
Result: Mr. Gauthier was able to persuade the Insurance company to settle the matter on a civil basis. No criminal charhges were forwarded. No criminal record.

The Defence

Consent

To prove an assault charge, the Crown must prove that the accused person actually made, or intended to make, contact with the complainant and that the complainant did not consent. Therefore, for example, one possible defence to an assault charge is that the complainant actually consented to the contact. This type of defence may apply to an assault that is alleged in the context of a bar fight.

Another defence that is typically advanced in assault cases is formed under s. 34 of the Criminal Code – the rules of “self-defence.”

Self Defence

The law allows that if a person reasonably believes that force is being used (or threatened to be used) against them, they are allowed to use force to defend themselves, or another person, so long as the force they use is reasonable. In determining whether the force used is reasonable, the court will consider various circumstances, including:

  • The nature of the force or threat;
  • The extent to which there was an alternative to using force;
  • The size, gender and physical capabilities of the parties; and
  • The history and relationship of the parties.

Essentially, self-defence is available to the extent that the accused person objectively had to defend themselves (or another person) and that the force used was not excessive. We have over 25 years of courtroom experience defending assault charges. Our experience allows us to assess cases before they get to trial and, in appropriate cases, we are able to persuade Crown counsel to not proceed with the prosecution. This may result in our client being accepted into the alternative measures program, a peace bond or an outright stay of proceedings.

Start with a free consultation.

If you are being investigated by police or if you’ve been charged with a criminal or driving offence, don’t face the problem alone. Being accused of an offence is stressful. The prospects of a criminal record or jail sentence can be daunting. Even if you think there is no defence, we may be able to help. To schedule a free initial consultation with one of our Vancouver lawyers, contact us now.